NCJ Number
128929
Journal
Trial Volume: 26 Issue: 11 Dated: (November 1990) Pages: 49-50,52-54
Date Published
1990
Length
5 pages
Annotation
The practice of personal injury law requires an understanding of the constitutional dimensions of the right of privacy.
Abstract
The doctor-patient relationship should be viewed as one that is constitutionally protected because it is a relationship that involves a fundamental right. State legislation and decisional law provide for the doctor-patient "privilege." Confidentiality is the most central characteristic of the doctor-patient relationship. The insurance defense industry and most insurance and defense firms have encouraged interference in this relationship -- particularly in medical negligence cases. Unfortunately, patients' lawyers often fail to understand both how to protect their clients and what constitutional dimensions are involved. Many routinely permit Rule 35 examinations even when no factual need is claimed. If plaintiffs can show some probability that their privacy rights would be meaningfully harmed by disclosure of medical records, the burden shifts to the defendant to establish that the information sought is relevant and that reasonable efforts to obtain the information by other means have been unsuccessful. With these constitutional insights, plaintiff's lawyers can adequately represent their clients in the day-to-day practice of personal injury law. 26 notes